“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4979 GEORGE T. GERHARDT COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 18, 1976?DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:Inthis matter, Judge Harold A. Kennedy rendered a report finding that theRespondent had failed to correct violations of the safety standards prescribedby 29 C.F.R. 1910.219(e)(1)(i), 29 C.F.R. 1910.212(a)(1) and 29 C.F.R.1910.309(a). He assessed penalties of $100 for each of the unabated violationsfor a total penalty of $300.Thefacts reveal that the Respondent?s plant was first inspected on July 17, 1973.On August 13, 1973, as a result of that inspection, a citation was issued whichamong other things alleged violations of the three previously mentionedstandards. Respondent received the citation on August 14, 1973. The citationprescribed an abatement period of ten days each for the alleged violations of1910.219(e)(1)(i) and 1910.212(a)(1) and five days for the alleged violation of1910.309(a).Respondentdid not contest the citation. Accordingly, it became final on September 5, 1973by operation of law.[1]TheRespondent?s plant was reinspected on September 10, 1973. As a result of thisinspection, the Secretary issued a notification of failure to correctviolations of the aforementioned standards. Penalties totaling $2580 wereproposed.TheRespondent filed a notice of contest; it was limited to the amount of theproposed penalties. Respondent did not take exception to the allegations thatcontinuing violations existed in its plant. Instead, it argued that?extenuating circumstances? had prevented it from knowing the amount of timeavailable to it for abatement and that therefore a reduction of the proposedpenalties was justified.The?extenuating circumstances? referred to by Respondent were stated to be: 1.The Respondent?s president was the Company?s only authorized representative andshould have been contacted at the time of the original inspection; 2.An inadequate closing conference was held with the Company?s plant manager; 3.The issuance and mailing of the original citation was delayed by nearly a monthafter the date of inspection; 4.The original citation did not specify a date certain for the abatement of eachitem but instead specified five- and ten-day abatement periods for the items; 5.The Respondent?s president and its repairman best able to abate the violationswere both on vacation when the original citation was received and 6.The unabated violations were of a low gravity.AsJudge Kennedy observed, the Respondent?s arguments were not advanced asdefenses at law but rather as an appeal justifying reduction of the proposedpenalties on equitable grounds. He therefore determined that continuingviolations existed as alleged but he determined that lower penalties werewarranted.Neitherparty petitioned for review. The matter was directed for review by CommissionerMoran on his own motion. He stated the issue for review as follows:Does the evidence ofrecord demonstrate that respondent was under any obligation to completeabatement of previously-cited violations on September 10, 1973, the date ofreinspection, in view of the fact that no final abatement order was possible atany date prior to September 5, 1973, and the terms of said final order (theuncontested August Citation) allowed respondent ten days to complete abatementof two of the items cited and five days to complete abatement of the other itemcited?\u00a0Itwould appear that the issue for review is whether an employer is obligated toabate or begin abatement of an alleged violation within the period forcontesting the allegation (29 U.S.C. 659(a)) when it does not contest thecitation making the allegation.Wenote first that neither party raised this issue in the case and that Respondenthas in effect conceded the continuing violations. We would not normally,therefore, dispose of the case on the issue raised for review. See: Abbott-Sommer,Inc., Docket 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (February 17,1976); John R. Davies & Son, Docket 5486, CCH OSHD 20,634 (April 19,1976).Inany event, the issue has been decided by two U. S. Courts of Appeal, Dunlopv. Haybuster Manufacturing Co., 524 F.2d 222 (8th Cir. 1975) and Brennanv. OSHRC (Kesler & Sons Construction Co.), 513 F. 2d 553, 557?8, (10thCir. 1975). As the Tenth Circuit said:. . . if theemployer does not contest a citation, the period of time permitted to correctthe violation begins to run from the date of the citation . . .. If Congressintended to preclude reinspection for failure to correct a violation for aperiod of fifteen days after the issuance of the citation, it could have saidso. But it did not and, in our view, clearly indicated a contrary intent.?Werewe disposed to decide the case on the issue raised by the direction for review,we would concur with these court decisions. But in view of respondent?sconcession that the violations were continuing it is unnecessary to decide theissue raised by the direction for review.Wehave examined the entire record and conclude that the Judge?s assessment of a$300 penalty is appropriate in the circumstances for the reasons given by him.Accordingly, the Judge?s findings and conclusions are adopted as the decisionof the Commission. It is so ORDERED.?BY THECOMMISSION:?WILLIAM S.McLAUGHLINExecutiveSecretaryDATE: JUN 18,1976?MORAN,Commissioner, Dissenting:Inthis decision my colleagues resort to an exercise in legal needlepointing inorder to avoid deciding the case on the issue on which it was directed.Ultimately, they say that it is not necessary to decide the case on thedirected issue because respondent conceded that the violations were not abatedat the time of the second inspection. Before they dispose of the case on thisbasis, however, they backstitch into the fabric a reliance upon Secretary v.Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976, and Secretaryv. John R. Davies & Son, OSAHRC Docket No. 5486, April 19, 1976, forthe proposition that they ?would not normally .. . dispose of the case on theissue raised for review.? Thus, although they first imply that they willdigress from their normal procedure and address the directed issue, theyultimately admit that they do not do so (drop 2, purl 1). Of course, thisadmission cannot be avoided because the respondent?s concession has absolutelynothing to do with the directed issue. If this double-talk will notsufficiently confuse readers of this opinion, then the lead opinion?s referenceto Abbott-Sommer and Davies will complete the job. Either mycolleagues do not remember the rule they established in those cases, or theyare forecasting an expansion of those decisions.Inboth of those cases my colleagues refused to consider the issues directedbecause the parties had not briefed them, thereby supposedly indicatingdisinterest in the cases. In this case, both parties have filed briefs on theissue specified in the direction for review. Other cases also illustrate thatMessrs. Barnako and Cleary continue to change their review rules whenever itsuits their purpose. For instance, in Secretary v. Alfred S. AustinConstruction Company, OSAHRC Docket No. 4809, April 28, 1976, my colleaguesreversed the Judge in affirming a citation even though the case was a suasponte direction for review by Commissioner Cleary which did not specify aparticular issue. However, in vacating my direction for review in Secretaryv. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976, mycolleagues had previously stated that:?If there is someappropriate reason for directing review sua sponte, the reason should be statedso that the Commission may benefit from the parties? briefs on the issue.?\u00a0Inthis case, the reason for directing review was stated and the Commission hasthe benefit of briefs from both parties on the directed issue. Therefore, itcannot be said that either party has shown disinterest in the issue or that thedirection for review was too general.Messrs.Barnako and Cleary are now apparently ready to embroider a new loophole intotheir review rule?that briefs will be disregarded if the parties did notraise?in advance?an issue that is specifically stated in a sua sponte directionfor review.[2] As I stated in Secretaryv. Singer Furniture Company, OSAHRC Docket No. 7134, March 5, 1976(dissenting opinion), if review of an issue is contingent upon its being raisedby one of the parties in a petition for review filed by one of the parties,there is no purpose in the statute?s authorizing discretionary review by themembers of the Commission. Moreover, such requirements are especially onerousto the employer attempting to defend himself without the aid of legal counsel,as is true of the respondent in this case.ThoughMessrs. Barnako and Cleary have incorrectly determined the outcome of this caseon their belief that respondent has conceded liability, it is gratifying to seethat at last[3] they have stated theiropinion of the decision in Brennan v. OSAHRC and Kesler & SonsConstruction Company, 513 F.2d 553 (10th Cir. 1975), albeit only in dictum.However, I cannot agree with their ready acceptance of the Circuit Court?sreversal of the Commission decision in Secretary v. Kesler and SonsConstruction Company, 9 OSAHRC 1033 (1974). The Circuit Court premised itsinterpretation of 29 U.S.C. ? 658(a) on its conclusion that it was required toaccept the Secretary?s interpretation of the Act if it is reasonable, ?eventhough there may be another interpretation of the statute which is itselfequally reasonable.?[4]That premise is contrary to the express congressional purpose of establishingthe Occupational Safety and Health Review Commission as an independent agencycharged with impartial adjudication of cases brought by the Secretary againstemployers.[5]Even Commission Cleary has heretofore stated that the Commission should notaccept the Secretary?s view of the law when erroneous.[6]Accordingly, rather than accepting without discussion the Circuit Court?sconclusions, the Commission should review its findings in Kesler, supra,and determine whether the original holding should be confirmed or rejected.Myown review of the issues raised in Kesler and in this case leadsinescapably to the conclusion that this Commission should adhere to itsoriginal conclusions.[7]Allowing the Secretary to require abatement within the 15 working days duringwhich the Act allows an employer to file a notice of contest effectively deniesthat employer its statutory right to use all of that time to consider thematters raised by the citation and determine whether or not to contest. I donot find that any of the policy arguments made by the Circuit Court warrant denyingan employer his full 15 days to decide whether to contest a citation. Moreimportantly, that decision is contrary to the congressional intent expressed in29 U.S.C. ? 659(b) that an abatement period fixed in a citation ?shall notbegin to run until the entry of a final order.?Applyingto this case the conclusions reached by the Commission in Kesler, Iwould find that no enforceable order of any kind?even one providing for?immediate? abatement?was possible at any date prior to September 6, 1973. Theprovision for a 5-day abatement period in the citation which automaticallybecame final on September 5th would allow respondent a period of time forabatement extending through September 10th. For the other two violations, thisperiod was somewhat longer. Consequently, the September 10th reinspection waspremature and illegal. The notification for failure to correct issued againstrespondent should therefore be vacated.?APPENDIX A\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4979 GEORGE T. GERHARDT COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: July 5, 1974DECISION AND ORDER\u00a0Appearances:Victor S. Palacios, Esq., of SanFrancisco, California for the Secretary\u00a0Mr. James R. Hinson of Palo Alto,California for Respondent\u00a0Harold A.Kennedy, Judge, OSAHRC:Thiscase presents the question of what penalties, if any, should be assessedagainst the Respondent Employer George T. Gerhardt Co., Inc., a smallfamily-owned California corporation engaged in the manufacture of sheet metal(Tr. 33, 79?82), for failing to abate three items of a final citation issuedagainst it.Respondentwas first inspected under the Occupational Safety and Health Act of 1970 (29U.S.C. 651 et seq.) on July 17, 1973 by Department of Labor Compliance OfficerRonald I. Corby. He was referred by George T. Gerhardt, the firm?s 80 year oldChairman of the Board, to Michael J. Pattenaude, Plant Superintendent.Mr.Corby made a walk-around inspection with Mr. Pattenaude and had a closingconference with him on that day before leaving the plant (Tr. 32, 47?51, 61,71, 77?8, 107?8). Nearly a month later, on August 13, 1974, the Secretaryissued a non-serious citation containing nine items or charges. Penalties wereproposed only for Items 1 ($30), 2 ($65), 6 ($65) and 9 ($80) thereof. Items 2,3 and 5 of that citation are relevant to this proceeding and alleged violationsas follows:\u00a0\u00a0 Item No. Standard Allegedly Violated Abatement Date Description \u00a0 2 29 CFR 1910.219(e)(1)(i) 10 days Failure to guard belts and pulleys. Equipment: 1) Gutter machine 2) feed to air shear.[8] 3 29 CFR 1910.212(a)(1) 10 days \u00a0 Failure to guard machinery to protect the operator and other employees in the machine area from hazards such as those created by points of operation, in-going nip points, rotating parts. Equipment: top of gutter machine and rolls on Yoder roll former. \u00a0 5 29 CFR 1910.309(a) NEC NFPA 70?1971 ANSI C1?1971 Article 400?5 5 days \u00a0 Cord to Coke machine not in continuous length without splice. \u00a0 \u00a0Thecitation and the notification of the proposed penalty, likewise dated August13, 1973, were received at Respondent?s place of business on August 14, 1974(J5C?D, Tr. 81, 117).Mr.George Gerhardt spent 54 years of his life building the business but is nolonger the guiding official of the firm. He may spend a half a day at thefirm?s office handling ?some of the shipping? and ?a little of the outsidesales?. Mr. George Gerhardt was at the office when the citation was received.President Roger Gerhardt was not as he was away on vacation between August 10and September 4, 1973 (Tr. 87?90).Onhis return to the office from vacation, President Roger Gerhardt went throughthe mail and ?within a couple of days? he had reviewed the citation andinitiated corrective measures as ?there was a lot to fix? (Tr. 90). Proceedingon a ?worst-first? basis (Tr. 93), he assumed that he had sufficient time tomake the necessary corrections, although the citation prescribed abatement ofall items (except for Item No. 9, which was to be corrected ?immediately?),from one to 15 days. He testified that he was not aware that the failure tocorrect might make Respondent ?subject to a hundred dollar a day fine minimum?under the Secretary?s rules (Tr. 92?3).OnSeptember 10, 1973, four work days after President Gerhardt had returned fromvacation, Compliance Officer Corby returned to Respondent?s place of businessto make a re-inspection (Tr. 34, 91).Hefound most of the items had been corrected,[9]but he recommended that Respondent be issued a Notification of Failure to Abateand of Proposed Additional Penalty based on a failure to correct said Items2(1), 3 and 5. Such a notification did issue on September 26, 1973 proposingadditional penalties as follows:? Item No. \u00a0 No. of Days Unabated \u00a0 Proposed Daily Additional Penalty \u00a0 Proposed Total Daily Additional Penalty \u00a0 Previously Allowed Abatement Credit \u00a0 Proposed Total Additional Penalty \u00a0 2(1) \u00a0 10 \u00a0 170?50% \u00a0 850.00 \u00a0 30.00 \u00a0 $880.00 \u00a0 3 \u00a0 10 \u00a0 85 \u00a0 850.00 \u00a0 – \u00a0 850.00 \u00a0 5 \u00a0 10 \u00a0 85 \u00a0 850.00 \u00a0 – \u00a0 850.00 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 …………………………………. \u00a0 \u00a0 \u00a0 \u00a0 Grand Total: \u00a0 $2580.00 \u00a0 \u00a0Underdate of October 5, 1973 Respondent submitted a timely notice of contest, whichrecited that Respondent was ?contesting only the proposed additional penalty?.Aftercomplaint and answer were filed, the case came on for hearing in San Francisco,California on February 6, 1974. The Secretary was represented by counsel, andRespondent was represented by Mr. James R. Hinson, a consultant in occupationalsafety and health. Respondent?s employees are represented by Sheet MetalProduction Workers Local 355, Oakland, California, but no one appeared orrequested party status on their behalf. Compliance Officer Corby appeared andtestified as did President Roger C. Gerhardt and Plant Superintendent MichaelJ. Pattenaude.Respondentconceded at the hearing that the original citation and penalty assessment arefinal; also, that it was an ?employer? within the meaning of the Act and thatthe Commission had jurisdiction in the case. Respondent here in fact arguesonly that the penalties proposed are excessive and points to certain?extenuating circumstances? as justifying a reduction. Counsel for theSecretary claims that the Secretary erred (in Respondent?s favor by giving an abatementcredit) in computing the proposed penalties but that total penalties in theamount of $2580 are fully justified. See Tr. 18?30, 73?76. According toRespondent, the ?extenuating circumstances? prevented Respondent from knowingthe amount of time available to it for abatement and, thus, justify reductionsof the additional penalties proposed. The ?extenuating circumstances? relied onare these: (1) President Roger Gerhardt was the only ?authorizedrepresentative? of Respondent and he should have been the one contacted on theoriginal inspection; (2) an inadequate closing conference was held with PlantManager Pattenaude; (3) the delayed issuance and mailing of the originalcitation; (4) the failure to specify in the citation a date for abatement of eachitem; (5) the vacations of President Roger Gerhardt and Repairman John Brown;and (6) the low gravity of the unabated violations.Thesearguments help explain why Respondent was unable to abate some of the items ina timely manner, but they do not really legally excuse it for not doing so. Ofcourse, they are advanced not as legal defenses but as an appeal justifyingreduction, on equitable grounds, of the additional penalties proposed.IfPresident Gerhardt were on hand on the day of the original inspection, it isentirely possible that this proceeding would not have been instituted. He wouldhave understood what needed to be done, when it was to be done, and, even moreimportant, he could have exercised the requisite authority to see to it that itwas done.[10] On the other hand, theinspecting official cannot be faulted for carrying out an inspection withRespondent?s plant manager, especially after being introduced to him by theRespondent?s board chairman. See Hawkins Construction Co., Dockets 503and 598, dated March 1, 1973 Also, the times specified for abatement set forthin the dated citation (i.e., in terms of days) appear to satisfy thespecificity requirement of section 9(a) of the Act.Thedelayed issuance and mailing of the original citation, however, resulted in adisadvantage, if not prejudice, to the Respondent. When it did arrive,Respondent?s most responsible officer, President Roger Gerhardt, and theemployee best able to abate violations, Mr. John Brown, were gone on vacation.The inspecting officer also acknowledged that he was not as explicit as hemight have been at the closing conference about correcting any violations (Tr.50, 64).Asindicated, supra, the Secretary had originally assessed a penalty of $65for Item 2 on the basis that two machines were involved. Compliance OfficerCorby testified that had only the gutter machine been cited on the originalinspection as on re-inspection Item 2 ?would have been rated as a zero penalty?(Tr. 55, 69). In computing penalties on the original inspection, the Secretaryallowed Respondent 5% for size, 20% for history and at least 10% for good faith(Tr. 52?3).[11] In assessing additionalpenalties for the continuing violations, the Secretary gave no consideration toRespondent?s good faith, size, history or gravity, but simply applied amathematical formula which ?automatically? assessed a minimum penalty of $100 aday.TheCommission, and the Act,[12]indicate that all civil penalties, including those for continuing violations,must take into account an employer?s good faith, size, history and the gravityof the violation. The Secretary?s proposed assessment did not duly considerthese statutory factors. See Beall Construction Company, Docket No. 557,dated February 21, 1974; The Murphy Company, Docket No. 445, dated March22, 1974.Respondenthad a gross volume of about $800,000 and approximately 19 employees last yearand is, thus, a relatively small business (Tr. 128?9). Its good faith has notbeen impeached. The record indicates Respondent is a cooperative employer andready to correct any violation once it knows that there is one. Respondentemployed a safety consulting firm and has spent ?thousands of dollars? to makeits workplace safe (Tr. 91). Its only ?history of previous violations? underthe Act is the Secretary?s inspection and citation in July 1963 (Tr. 33).Finally, the gravity of the continuing violations, usually considered by theCommission as the most important factor in assessing penalties (see, forexample, Nacirema Operating Company, Docket No. 4, dated February 2,1972) was not high (Tr. 45?6, 51?7). Inspector Corby explicitly conceded thatthe unabated items were violations of low level gravity (Tr. 51, 56?7).Havingconsidered the statutory factors in the light of the record, it is determinedthat a penalty of $100 for each unabated violation or a total penalty of $300is appropriate under the Act.Basedon the foregoing, and the whole record, the following conclusions of law areentered:1.Respondent is now, and at all times material herein, an ?employer? within themeaning of Section 3 (5) of the Occupational Safety and Health of 1970, and theCommission has jurisdiction of the parties and the subject matter.2.The citation and notice of proposed penalty issued by the Secretary againstRespondent on August 13, 1973, were not contested and, thus, became finalpursuant to the provisions of Section 10(a) of the Act.??????????? 3. Continuing violations of Item2(1), 3 and 5 as alleged in the Notification of Failure to Correct Violationand of Proposed Additional Penalty dated September 26, 1973, were establishedas the allegations were not timely contested as provided in Section 10(b) ofthe Act.4.The additional penalties proposed for said continuing violations of Items 2(1),3 and 5 are excessive and a total additional penalty of $300 ($100 for each) isassessed in lieu thereof.Basedon the foregoing, it is ORDERED that the Notification of Failure to CorrectViolation and of Proposed Additional Penalty dated September 26, 1973 insofaras it alleges a continuing violation of 29 C.F.R. 1910.219(e)(1)(i), 29 C.F.R.1910.212(a)(1) and 29 C.F.R. 1910.309(a) are AFFIRMED; the additional penaltiesof $880, $850 and $850 proposed for such violations (Items 2(1), 3 and 5)respectively, are VACATED and in lieu thereof an additional penalty of $100 foreach violation or a total of $300 is hereby?ASSESSED.?Harold A. KennedyJudge, OSAHRCDated: June 4, 1974[1] Section 10(a),Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 661 et seq.,hereinafter referred to as ?the Act.?[2] Compare Secretary v.Star Circle Wall Systems, Inc., OSAHRC Docket No. 3271, March 9, 1976; Secretaryv. Electrical Contractors Associates, Inc., OSAHRC Docket No. 10108,February 24, 1976; Secretary v. Boring & Tunneling of America, Inc.,OSAHRC Docket No. 5782, December 29, 1975.[3]See Secretary v. American Bag Co., OSAHRC Docket No. 3288, April 6,1976; Secretary v. Boring & Tunneling Company of America, Inc., supra.\u00a0[4]513 F.2d at 554.\u00a0[5]See Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1stSess., Legislative History of the Occupational Safety and Health Act of 1970,at 155, 194, 200?202, 298, 392, 424?426, 462?477, 981?982, 991, 1014, 1050,1058, 1070, 1143, 1206 (Comm. Print 1971).\u00a0[6] Secretary v. Queen CitySheet Metal & Roofing, Inc., OSAHRC Docket No. 4322, November 6, 1976(dissenting opinion).\u00a0[7] I have previouslyexpressed this view in Secretary v. American Bag Co., supra, note3.[8] The ?feed to air shear? is not included in this proceeding(Tr. 41?2).[9] The feed to air shear hadbeen corrected (Tr. 41). Mr. Pattenaude testified that the employee able tomake all the corrections, Mr. John Brown, was on vacation August 17?28, 1973.There was about nine days work involved in constructing all of the necessaryguards (Tr. 113?122).[10] Mr. George Gerhardtapparently has continued to exercise some authority in areas other thanshipping and sales, at least in the absence of his son Roger. (Tr. 109, 111?12,123?4.)[11] A penalty worksheet preparedafter the second inspection indicates Respondent was given ?0? for good faith,5% for ?size? and 10% for ?history? (SX 5).\u00a0[12] Section 17(j) of the Actprovides that the Commissionshall have authority to assess allcivil penalties provided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations (emphasisadded).\u00a0Section 17(d) provides thatany employer whofails to correct a violation for which a citation has been issued under section9(a) within the period permitted for its correction (which period shall notbegin to run until the date of the final order of the Commission in the case ofany review proceeding under section 10 initiated by the employer in good faithand not solely for delay or avoidance of penalties), may be assessed a civilpenalty of not more than $1,000 for each day during which such failure orviolation continues.”